Ninth Circuit Makes Exception to "405" Ruling

FORFEITURE October 1995

The Court of Appeals for the Ninth Circuit ruled on August 4 that administrative forfeitures do not constitute punishment for the purposes of the Double Jeopardy Clause of the Fifth Amendment (U.S. v. Cretacci, No. 94-10235, 62 F.3d 307, (9th Cir. 1995); BNA Criminal Practice Manual, August 30, 1995, p. 447; "Government Forfeiture Powers Revived in Ninth Circuit," Drug Enforcement Report, August 23, 1995, p. 3).

The ruling clarifies a point in the Circuit's ruling in U.S. v. $405,089.23 in U.S. Currency, 33 F.3d 1210, (9th Cir. 1994), which found that a criminal prosecution constitutes a violation of the prohibition against double jeopardy when certain types of earlier civil forfeiture have taken place. Administrative forfeiture occurs when the government announces that it will seize the property and allows time for owners to claim it.

The government made a claim for Joel Cretacci's car, which they alleged was purchased with proceeds from two robberies. Cretacci did not respond to the claim, and the government took the car. After the forfeiture, Cretacci filed for dismissal of the criminal case against him on the grounds of double jeopardy.

The Ninth Circuit found that the administrative forfeiture is not punishment. Because Cretacci did not claim the car, it is deemed abandoned. Cretacci argued that to claim the property would constitute a violation of his right against self-incrimination, but the court ruled that he has to claim the property as his to trigger double jeopardy. Further, mere ownership of the property would not have been used in court to prove his guilt in relation to the robberies.